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Fri May 11, 2012 at 16:20:45 PM CDT

Governor Terry Branstad signed an executive order today to nullify an administrative rule banning the use of lead ammunition for hunting mourning doves in Iowa. He advanced two contradictory positions: that the Iowa legislature (not the state Natural Resources Commission) should decide whether dove hunters must use alternative ammunition, and that he was compelled to act because the Iowa Senate failed to assert its authority on this important issue.

The Iowa House and Senate passed a bill in 2011 to legalize the hunting of mourning doves for the first time since 1918. Last July, the Natural Resource Commission, which operates under the jurisdiction of the Iowa Department of Natural Resources, approved a package of rules on dove-hunting season. Among other things, commissioners voted unanimously to ban lead shot for hunting doves. The Iowa DNR explained in a press release,

The non-toxic shot requirement follows several discussions by the commission during the past year concerning the impacts of lead shot to the environment and on wildlife. Lead - or toxic - shot used in hunting can be ingested by wildlife. There has been a national ban on the use of lead shot for waterfowl hunting since 1991 with non-toxic shot for waterfowl being in place in Iowa since 1987.

Governor Branstad criticized the Natural Resource Commission last August, saying, "we need to respect the intent of the Legislature and an issue of this magnitude of public policy should be decided by the Legislature not by an unelected commission that was appointed." Branstad's legal counsel Brenna Findley confirmed that the governor believes "the decision belongs to the legislature" in this case.

"We're going to look into what can be done about that," the governor said, noting that he has assigned his legal adviser, Brenna Findley, to explore what options might be available. He was hopeful there would be an avenue whereby the way could be cleared for hunters to use lead shot this fall, but he noted "they just adjourned last night and we're trying to figure out what didn't get done."

An Iowa Code section provides that the governor may rescind an adopted rule by executive order within 70 days of the rule becoming effective. The portion of the rule banning lead shot had a session delay on it and that portion did not become effective until after lawmakers adjourned without taking action.

Thursday afternoon Branstad's office said the governor "intends to take action (Friday morning) to correct a broken promise by the Senate Democratic leadership this past legislative session."

"The determination of whether hunters should be forced to stop using traditional shot is something that should be decided by the Legislature, not by administrative fiat," Branstad said before signing an executive order rescinding the ban put in place to protect public health.

Wait a second--the governor has to step in to protect legislative prerogative against "administrative fiat"? But the legislature opted not to act on this issue. Speaking to reporters today, Branstad asserted,

"I understand that Sen. Gronstal was going" to bring the resolution up for a vote "but it just didn't get done in the rush to adjourn," Bransta[d] said. "I don't think that failing to bring an issue up of this importance should be prevented and the governor does have the authority."

If Senate Majority Leader Mike Gronstal had wanted to bring the resolution on the lead ammunition rule up for a vote, he could have done so almost any day during the three months since the Senate Natural Resources Committee approved that resolution. The governor wants to have it both ways: respecting legislative intent to overturn a rule but not respecting legislative intent to leave that rule alone.

Branstad said last year that he would be OK with the lead ban if that was the consensus of the commission, according to commission minutes from testimony given by Conrad Clement, a Republican from Cresco that was appointed by the governor.

Branstad acknowledged today that he originally gave the green light to the ban but insisted that he was not fully informed on the issue prior to that conversation with Clement.

"At that point I didn't know the legislative history," Branstad said, noting that there was a rejected amendment to the dove bill that would have banned lead shot. "Obviously had I known those facts, I would have told the member of the commission that called me, this is something that clearly an administrative agency should not do something that goes directly the will or the intent of the legislature."

Strange logic there from the governor. He admits that he changed his mind about the issue after learning more facts. He cites one Iowa House vote on an amendment in early 2011 as proof that the Iowa legislature did not want to ban lead shot. (NOTE: see update at the end of this post.) Yet he doesn't respect the prerogative of the Iowa Senate to decide in 2012 whether to overturn the administrative rule.

Democratic Senator Rob Hogg, a supporter of the ban on lead ammunition, spoke to Rod Boshart yesterday:

"I think he should leave that rule in place, but obviously if he wants to try to convince the Natural Resources Commission to try to change the rule, he's free to do that," Hogg said. However, he noted the governor had indicated he believed the elected Legislature, not an appointed commission, should make the decision and lawmakers exercised their authority by validating the status quo.

"The commission made the decision that it was important to protect the health and safety of people and animals and the environment, and they saw this was a moment in time where the amount of lead in our environment might increase significantly," he said. "The data shows that dove hunting involves a lot more ammunition than other forms of hunting, and so they made the determination that that was a hazard to our environment. I don't think he really wants to roll back environmental protections, especially when there's such a viable alternative which is the steel shot which is just generally available in the marketplace now."

Dearden is unwilling to say whether the senate's inaction on the issue was intentional or accidental. Dearden intends to hunt doves in Iowa this September, using lead shot.

"Absolutely," Dearden said. "You know, if you're walking across a field pheasant hunting and a dove comes over, you don't have time to change shot. The lead thing is more anti-hunting. It's a way of, 'if we make is more and more difficult to hunter, there's going to be less and less hunters.'"

"The National Rifle Association would like to thank Governor Branstad for rescinding this ill-conceived scheme by the Iowa Natural Resources Commission," said Chris W. Cox, executive director of NRA's Institute for Legislative Action. "The NRC pandered to anti-hunting extremist groups and did their political bidding. They failed to cite a single credible scientific study to back up their baseless claims to support this ban. Today, thanks to the leadership of Governor Branstad and to the tireless efforts of Senator Dick Dearden, fairness, integrity and common-sense have been restored to this process."

Traditional ammunition bans are financed by extremist anti-hunting groups - like the Humane Society of the United States and the Sierra Club under the guise of "conservation efforts". The long-term goals of these groups are to try to eradicate hunting and firearm ownership. Their attempt to gain a foothold in Iowa has been foiled.

I know plenty of hunters who support a ban on lead ammunition, which has been shown to harm predatory birds and other wildlife. But the National Rifle Association has long opposed any restriction whatsoever on the use of guns or ammunition.

Branstad's latest executive order will presumably derail consideration of a lawsuit the Sierra Club Iowa chapter filed earlier this year. The Sierra Club was seeking to force the Iowa DNR to enforce the lead shot ban by challenging the Administrative Rules Review Committee's power to overturn an administrative rule. The lawsuit contends that Article III, Section 1 of the Iowa Constitution outlines the separation of powers, and that a "committee of the Legislative Branch usurped the function and authority of a body of the Executive Branch."

Brenna Findley filed an amicus brief on behalf of the governor supporting the Administrative Rules Review Committee. Among other things, that brief notes that Article III, section 40 of the Iowa Constitution states, "The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly." Iowa Code Section 17A.8 then "sets out the powers of the Rules Review Committee and allows for the legislative review process to continue even when the legislature is not in session. One action the Rules Review Committee may take is to delay the effective date of an agency rule until the adjournment of the next regular session of the legislature [...]."

Neila Seaman, director of the Sierra Club Iowa chapter, said her group is seeking legal advice on how to proceed now that Branstad has nullified part of the administrative rule. The executive order (pdf) rescinds just one sentence from the Natural Resource Commission's language and leaves the rest of the rule on dove hunting season intact. I wonder whether that creates space for a legal challenge. I am seeking further information on whether there is precedent for an Iowa governor to rescind only part of an administrative rule.

I think Seaman hit the nail on the head in describing the governor's contradictory stand on this issue.

"You know, he said it was up to the legislature to make the decision about how to proceed with this and when he didn't like what the legislature did - which was the Senate did nothing - now he's issued an executive order that rescinds the ban on lead ammunition for hunting mourning doves," Seaman said.

The Lead is Poison Coalition is deeply concerned with Governor Branstad's decision to issue an executive order rescinding the rule to ban lead shot in mourning dove hunting. This executive order favors one special interest group above the health of all of Iowa's citizens and wildlife, and burdens future generations with the clean up of this toxic substance. The Coalition will continue to research the issue, educate the public, and promote safe, responsible hunting using non-toxic ammunition.

Click here (pdf) for Lead Is Poison's handout on why non-toxic shot should be required for dove hunting.

SECOND UPDATE: I had to laugh watching Branstad go on television to criticize President Obama for coming out in support of same-sex marriage: "I find it tragic to see the President of the United States pandering to the Hollywood money crowd instead of focusing on the things that are important to America [...]."

Some of us find it tragic to see the governor of Iowa pandering to the NRA crowd with a special press conference and executive order.

THIRD UPDATE: Turns out the Iowa House vote against that amendment to ban lead shot wasn't as clear a statement of legislative intent as Branstad implied. A Bleeding Heartland reader alerted me to the fact that House Republican Rich Arnold, who floor-managed the dove-hunting bill in 2011, said the Natural Resource Commission could establish rules on what kind of ammunition was allowed for hunting doves. From James Q. Lynch's report for the Cedar Rapids Gazette in March 2011:

On the way to approving the bill, representatives offered amendments to prohibit using lead shot, require dove hunters to buy migratory fowl stamps and prohibit dove hunting within a mile of a residence. All were rejected. [GOP State Representative Rich] Arnold said the Natural Resources Commission could establish those rules.

Apparently the governor was waiting for lawmakers to go home before he dusted off his pulpit. But then what did he stand up for? Ensuring that hunters can spray a toxic substance all over Iowa's rural countryside. That's right. Of all the issues he could have championed, he chose introducing more lead into our environment. [...]

It's ironic that this comes from the former president of a medical school. Lead is toxic and has been proven to cause brain damage and death in wildlife and humans.

That's why the federal government banned lead shot in hunting waterfowl decades ago. That's why lead is banned from paint and gasoline. That's why the Iowa Department of Public Health's website says "lead has adverse effects on nearly all organ systems in the body."

When hunters use lead shot, the tiny pellets that miss their mark mix with grit birds eat to aid their digestion. Ingesting a single pellet can be fatal to them. There is no good reason for lead to be spread all over Iowa's countryside by hunters.

The Iowa chapter of the Sierra Club is reviewing legal options to challenge the governor's executive order. Iowa Attorney General Tom Miller should do the same.

Perhaps the governor can't be convinced to do what's right for Iowa. But overstepping his authority should be challenged.

Lead shot is an important issue, but IMHO it will take federal action to finally get the job done, like for waterfowl. Bigger picture - I think this issue is a diversionary tactic to get environmentalists all embroiled, and divert attention from the fact that our rivers and streams are open sewers, CAFOs dotting the landscape, etc etc etc